732

Eligibility for Prisoner Transfer

The requirements for transfer are set forth in the enabling
statute, 18 U.S.C. §§ 4100-4115, and in the transfer
treaties. The basic eligibility requirements are: (1) the
prisoner must be a citizen or national of the country to which
he/she wishes to transfer; (2) a transfer treaty relationship
must exist between the United States and the prisoner's country;
(3) the prisoner must be convicted and sentenced; (4) the
judgment and conviction must be final, meaning that there are no
pending appeals or other collateral attacks against the
conviction or sentence; (5) dual criminality must exist—the
offense for which the prisoner is incarcerated must be a crime
under the laws of the receiving country; (6) in the absence of
exceptional circumstances, a minimum period of time (typically 6
months) must be left to serve on the sentence at the time of
application; (7) there can be no other pending criminal charges
against the prisoner; and (8) the prisoner, the sentencing
country and the receiving country must all consent to the
transfer. Depending on the treaty, additional requirements may
also be present. For example, the bilateral treaty between the
United States and Mexico precludes the transfer of immigration
offenses and prisoners who have become "domiciliaries," of the
United States. The Mexican treaty defines a domiciliary as a
person who has been present in the territory of one country for
at least five years with an intent to remain permanently
therein.